61 The Four Factors

Most of the copyright exceptions are very specific about what kinds of uses may qualify for the exception and often include various restrictions about who can use the exception and under what precise conditions.

Fair use, on the other hand, is much more flexible and can apply to a wide variety of uses. Instead of specifying an exact type of user, type of material or amount that qualifies for this exception, the fair use statute provides a framework for the analysis and application of four factors that determine whether or not a particular use may qualify as fair use.

The four factors of fair use are:

• Purpose & character of use, including whether commercial (i.e. publishing a book) or non-commercial (i.e. using in a classroom assignment)
• Nature of the original material (i.e., is the work published or unpublished? Fact or fiction? Highly creative?)
• Amount and substantiality of the original work (are you using the entire work or just a portion?)
• Effect on the marketplace or on the work’s value (will your use have a financial impact on the creator?)

When considering whether a proposed use of a copyrighted work may qualify as fair use, you must weigh all four factors together. Each factor is equally important.

Transformation

The courts have recently emphasized the concept of transformation or a transformative purpose, which falls under the first factor of fair use.

Transformation means that the way in which the work is being used is significantly different than the original use for which it was created.

In many cases a transformative use of a copyrighted work will strongly favor a determination of fair use.

There are two ways in which a use can be transformative.

First, you could actually make changes to the original work in order to use it for a new purpose. An example would be to take short clips of popular movies and remix them to create a video for the purpose of social commentary or teaching.

The second form of transformative use does not require that you alter the original work in any way. Instead, you simply use the work for a purpose that is significantly different than the use for which it was created. An example of this would be using clips from a blockbuster movie that was originally sold for mass market entertainment for the purpose of teaching and research.